339 F.

3d 226

UNITED STATES of America, Plaintiff-Appellee,

v.
Gregory E. Caplinger, Defendant-Appellant.
No. 01-4878.

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2003.
Decided: August 11, 2003.

COPYRIGHT MATERIAL OMITTED ARGUED: Thomas Kieran

Maher, RUDOLF, MAHER, WIDENHOUSE & FIALKO, Chapel Hill,
North Carolina, for Appellant.
B. Frederic Williams, Jr., Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
ON BRIEF: Robert J. Conrad, Jr., United States Attorney, Holly A.
Pierson, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Judge Williams and Judge
Shedd joined.
OPINION
MICHAEL, Circuit Judge:

Gregory E. Caplinger was tried and convicted in the Western District of North
Carolina on six counts of wire fraud and two counts of international money
laundering. Caplinger's convictions and sentence arise out of his successful
efforts to attract investment in a bogus scheme to market worldwide a drug that
was supposed to be effective in treating HIV/AIDS and cancer. Caplinger
appeals his convictions for money laundering and his 168-month sentence. We
affirm the convictions for money laundering. With respect to Caplinger's

sentence, we affirm the district court's use of the money laundering guidelines,
its grouping of the wire fraud and money laundering counts, and its
determination of the amount of loss. The district court erred, however, in
assessing Caplinger with a two-level enhancement under U.S.S.G. 3B1.3 on
the ground that he abused a position of trust when he misrepresented himself as
a prominent physician in his efforts to attract investors. We therefore vacate
Caplinger's sentence and remand for resentencing without this enhancement.
I.
2

Caplinger was indicted and tried on six counts of wire fraud, see 18 U.S.C.
1343, and two counts of international money laundering, see 18 U.S.C.
1956(a)(2)(A). The essence of the government's case was that Caplinger
engaged in a scheme to defraud investors who put money into Caplinger's
purported effort to market ImmuStim, a medicine he represented to be effective
in treating HIV/AIDS and cancer. At a seven-day trial held in July 2000, the
government relied heavily on the testimony of David Weekly and Harry
Kampetis, both of whom had pled guilty to fraud charges stemming from the
same scheme.

In 1993 before Caplinger came onto the scene, Weekly, a stock broker, and
Kampetis, a retired banker, formed the Diamond Group, an investment
partnership based in North Carolina. The partnership promised investors that it
would invest in prime bank notes and provide a guaranteed return of 20 percent.
The scheme was crooked, and the Diamond Group (Weekly and Kampetis)
soon experienced difficulty in paying the returns promised to investors. In
1994, at a time when the Diamond Group partnership was desperate to find
ways to avoid a collapse, Kampetis was introduced to Caplinger, who Kampetis
believed was a physician operating a clinic in Santo Domingo, Dominican
Republic. Caplinger claimed that he had access to Immu-Stim, a high-powered
drug produced by C-Systems in Havana, and that he had successfully tested the
drug on patients with HIV/AIDS and cancer. Caplinger said he had plans to
license and market Immu-Stim worldwide, and he invited Kampetis to join in
the venture. Caplinger told Kampetis that worldwide sales of ImmuStim "would
generate a significant amount of revenue because of how effective [the drug]
was." Caplinger represented that work was under way to obtain a U.S. patent on
ImmuStim, which would be worth about $5 million. Kampetis suggested to
Weekly that their Diamond Group invest in a Caplinger-led effort to market
ImmuStim.

Caplinger held himself out to Weekly and Kampetis as a physician who had
received medical degrees from schools in Great Britain and the Dominican

Republic. In addition, Caplinger claimed to have received a number of

academic and professional honors, including a nomination for the Nobel Prize
in Medicine. (At trial the government offered evidence that Caplinger had
presented false credentials to Weekly and Kampetis. Almost all of Caplinger's
medical "degrees" were "mail order" ones bought with no study required. For
instance, Caplinger claimed to have received a medical degree from the
Metropolitan Collegiate Institute (MCI) in Great Britain and a Doctor of
Science degree from Sussex College of Technology, also in Great Britain. An
expert witness for the government testified that a medical degree from MCI
could be bought for $100 with no study required. Sussex College of
Technology was a one-man operation run out of a private home where mail
order degrees could be obtained at all levels in all fields, with no study
required. The "nomination" for the Nobel Prize came from Sussex General
Hospital, whose address was a maildrop; there was no hospital facility.
Caplinger presented evidence that he held a valid medical degree from
Autonomous University of Santo Domingo. His witnesses testified that a
medical degree could be obtained from this institution by presenting medical
degrees earned outside the Dominican Republic, completing several medical
courses, and passing a competency exam. The registrar of Autonomous
University testified that Caplinger had met these requirements.)
5

As part of his effort to persuade Weekly and Kampetis to invest with him,
Caplinger presented them with what were purportedly accurate financial
statements and records for his corporation, World Medical Services. The
documents showed that the corporation had a net worth of $8,799,500.
According to the records, World Medical Services had purchased a large supply
of ImmuStim, and Caplinger had already solicited and received orders for its
resale. The corporate records did reflect, however, that Caplinger's operations
had earned profits of only $132,000 in ten years. (According to the
government's evidence at trial, Caplinger had provided Weekly and Kampetis
with statements about the value of his corporation that were materially false.)

After reviewing Caplinger's credentials, assessing the financial data that

Caplinger provided about World Medical Services, and considering Caplinger's
plan to market ImmuStim, Weekly and Kampetis decided that "the investors
[they] represented and their funds would have a chance to really profit
substantially" by putting money into Caplinger's venture. Weekly and Kampetis
began sending money to Caplinger in the spring of 1995 and continued to do so
for the next two years. Weekly and Caplinger did not inform investors in their
Diamond Group partnership that substantial sums of partnership money (about
$1.6 million in all) were being invested in Caplinger's venture. As Weekly and
Kampetis continued to send more and more money to Caplinger, they decided

that they needed "to protect the position of the investors in the United States."
In the fall of 1995 Weekly and Kampetis incorporated Immuno
Pharmaceuticals, Inc. (IPI) in the United States and persuaded Caplinger to
transfer all assets of World Medical Services to IPI. Weekly, Kampetis, and
Caplinger were the primary shareholders in IPI, but they sought additional
investors. Weekly and Kampetis attempted to sell shares of IPI to large
institutional investors, such as Shearson Lehman, but none were interested.
They were, however, able to sell shares to individual investors. Weekly and
Kampetis provided potential investors with solicitation materials, including
brochures and a video, describing Caplinger's clinic, the ImmuStim marketing
project, and ImmuStim's success rates on patients at Caplinger's clinic. (The
government did not attempt to prove at trial that ImmuStim is ineffective.)
Weekly told potential investors that investment in Caplinger's ImmuStim
marketing venture would produce lucrative returns. Approximately fifteen
investors paid a total of $230,000 to buy shares of IPI stock. These monies were
wired to Caplinger.
7

Several IPI investors and potential investors, including the following four,
testified for the government at trial. Jane Henderson testified that Weekly
contacted her about investing in IPI. Weekly sent her and her husband a
brochure about IPI and an article written by Caplinger in Spanish. The
Hendersons were told that "with a little more investment . . . ImmuStim could
be marketed worldwide." They invested $30,000 in IPI. Mrs. Henderson
testified that she spoke with Caplinger on one occasion to seek advice about
potential cancer treatment for her grandmother. LaGena Green, a North
Carolina actress who is HIV positive, testified that she was approached by
Weekly and asked whether she would be willing to be a spokesperson for
ImmuStim in exchange for free treatment. Green was flown on two occasions to
the Dominican Republic where she was treated at Caplinger's clinic. Despite
intense pressure from Weekly and Kampetis to serve as ImmuStim's
spokesperson, Green declined. She did not invest in ImmuStim and did not pay
for the treatment she received at Caplinger's clinic. Barry Burke, a childhood
friend of Weekly, invested in IPI after Weekly talked up Caplinger's project and
gave Burke brochures about IPI that touted the successes of ImmuStim.
Vincent Khau, a potential investor, testified that Weekly and Kampetis flew
him to the Dominican Republic to meet with Caplinger. While there, Khau was
taken to Caplinger's resort condominium and shown around Caplinger's offices.
He was given a sample vial of ImmuStim to take home and show to his
investment partner. Khau backed out of investing over $1 million in IPI after
discovering that Caplinger had been convicted several years earlier for
practicing medicine without a license in North Carolina.

Weekly and Kampetis sent $1,800,000 to Caplinger, either from Diamond

Group funds or the sale of IPI shares. All of the funds were wired from the
United States to the Dominican Republic. Six specific transfers to Caplinger
were the basis for the wire fraud counts against him: $49,000 on May 4, 1995;
$25,000 on October 3, 1995; $50,000 on November 29, 1995; $825,000 on
December 15, 1995; $70,000 on April 9, 1996; and $40,000 on September 20,
1996. The November 1995 transfer of $50,000 and the December 1995 transfer
of $825,000 also formed the basis for the two money laundering counts.
Caplinger told Weekly and Kampetis that the $50,000 was required to keep
Caplinger's clinic operation going. Caplinger said that the $825,000 was needed
to pay for a substantial order of ImmuStim. He made constant requests to
Weekly and Kampetis for money during the two years they were involved with
him. Caplinger represented that funds were needed to pay staff, to pay expenses
for the clinic, to buy medical supplies, and to maintain a corporate airplane.
Caplinger told FBI Agent Julia Mueller that he received almost $2 million from
Weekly and Kampetis, which he used to make payments for ImmuStim
supplies, to pay legal bills, to maintain the airplane, and to keep the clinic
running. According to Caplinger, he did not know the individual sources of the
money sent by Weekly and Kampetis, but he knew that it came from investors
solicited by them.

Weekly and Kampetis learned about Caplinger's conviction for the illegal
practice of medicine in the fall of 1996. The two men nevertheless continued
their relationship with Caplinger. By January 1997, however, Weekly and
Kampetis could no longer raise funds for Caplinger's speculative venture. By
the spring of that year they were fending off calls from concerned investors
demanding interest payments and information about their investments. Weekly
and Kampetis became skeptical about Caplinger and his ImmuStim project
because the clinic was not generating revenues, and they appeared to be
funding the entire operation. By the spring of 1997 two years had passed, and
Weekly and Kampetis had not received any return on their investment with
Caplinger. At that point, they ended their relationship with Caplinger and
sought legal counsel. In May 1997 Weekly began cooperating with the FBI.
Both Weekly and Kampetis were charged with fraud and entered plea
agreements. The government promised to recommend reduced sentences in
exchange for their cooperation and testimony against Caplinger.

10

At trial, following the denial of his motion for acquittal, Caplinger was
convicted by the jury on all eight counts. The Presentence Report (PSR),
adopted by the district court, used the money laundering guidelines, and not the
ones on fraud, to calculate Caplinger's offense level. The entire $1,800,000
received by Caplinger by wire was treated as a loss under the money laundering

guidelines in calculating the offense level. Caplinger objected both to the use of
the money laundering guidelines and the treatment of the entire $1,800,000 as
the loss under those guidelines. FBI Agent Mueller testified at sentencing that
all of the funds wired to Caplinger were used to promote his fraudulent scheme.
The district court concluded that Caplinger's "continuing enterprise" was
supported by all of the funds sent to him by Weekly and Kampetis and that
$1,800,000 thus represented the appropriate loss under the money laundering
guidelines. The district court also adopted, over Caplinger's objection, the
PSR's recommendation for a two-point enhancement for abuse of trust under
U.S.S.G. 3B1.3. The enhancement was based on Caplinger's representation,
which was passed on to potential investors, that he was a physician. On
October 30, 2001, the district court sentenced Caplinger to 168 months
imprisonment and three years supervised release; Caplinger was also ordered to
pay monetary penalties of $1,059,000 in restitution and $450 in special
assessments. Caplinger appeals his international money laundering convictions
and his sentence. He does not appeal his wire fraud convictions.
II.
11

Caplinger first argues that the evidence was insufficient to prove the intent
element of the two international money laundering charges. In reviewing a
sufficiency of the evidence challenge to a jury verdict, we decide whether there
is "substantial evidence, taking the view most favorable to the Government, to
support [the verdict]." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,
86 L.Ed. 680 (1942). The international money laundering counts were based on
two wire transfers from Weekly and Kampetis to Caplinger, the first in
November 1995 for $50,000 and the second in December 1995 for $825,000.
To prove that Caplinger engaged in international money laundering, the
government had to show that he caused funds to be transferred "from a place in
the United States to or through a place outside . . . with the intent to promote
the carrying on of specified unlawful activity." 18 U.S.C. 1956(a)(2)(A). See
also id. 1956(c)(7)(A) (defining "specified unlawful activity" to include wire
fraud). Caplinger contends that the government failed to prove that he arranged
to have the funds transferred "with the intent to promote" his unlawful activity,
namely, his bogus ImmuStim marketing scheme that was funded by wire fraud.
As Caplinger recognizes in his brief, we have held under the domestic money
laundering statute, 18 U.S.C. 1956(a)(1)(A)(i) a statute containing the
same "intent to promote" language that intent to promote is proven with
evidence that the defendant used proceeds from an unlawful scheme to keep the
scheme going. See United States v. Stewart, 256 F.3d 231, 249-50 (4th
Cir.2001); United States v. Wilkinson, 137 F.3d 214, 221 (4th Cir.1998).
Caplinger's specific argument is that the government failed to prove use

because it did not introduce any bank records or other documents "to show what
was actually done with the money once it [was] transferred." Appellant's Br. at
23. In construing the companion domestic money laundering statute, however,
we have held that the use of unlawful proceeds to further an unlawful scheme
can be proved without records documenting specific expenditures. Stewart, 256
F.3d at 249. Rather, use can be proved by other competent evidence, including
circumstantial evidence, that the defendant applied unlawful proceeds to
promote and perpetuate his scheme. Id.
12

The government contends there was sufficient evidence to allow the jury to find
that Caplinger used the $50,000 and the $825,000 transfers to keep his illegal
scheme going. We agree. The government's evidence established that Caplinger
told Weekly and Kampetis that he needed the $50,000 to keep the clinic in
operation. Caplinger told Weekly that he needed the $825,000 to purchase "a
large quantity of ImmuStim." Caplinger made constant pleas to Weekly and
Kampetis for money to cover clinic expenses, including rent and salaries,
medical supplies, and the maintenance of a corporate plane. Caplinger was in
obvious need of funds: in the ten years before Weekly and Kampetis arrived on
the scene, Caplinger's operation produced total profits of only $132,000; and
Caplinger needed the clinic and all of its trappings to attract investors and to
assure them that the ImmuStim marketing project was a sound investment.
Following the transfers from Weekly and Kampetis, Caplinger was able to keep
the clinic in operation and maintain the corporate airplane, two indications that
the money went exactly where Caplinger said it would go. Moreover, Caplinger
himself told the FBI that he used the wired funds to buy ImmuStim, to make
repairs on the airplane, and to "keep the clinic going." In sum, there was
substantial evidence to support the jury's finding that Caplinger intended to
promote his fraudulent ImmuStim marketing scheme through use of the
transferred funds. See Stewart, 256 F.3d at 250. Caplinger's convictions on the
two counts of international money laundering are therefore affirmed.

III.
13

We turn next to Caplinger's challenges to his sentence. We review the district

court's factual findings at sentencing for clear error, and we review its legal
interpretation of the Sentencing Guidelines de novo. United States v. Dawkins,
202 F.3d 711, 714 (4th Cir.2000).

A.
14

We start with Caplinger's argument that because this is essentially a fraud case,
the district court erred in referring to the money laundering guidelines instead

of just the fraud guidelines. Guidelines 1B1.2(a), however, instructed the

district court to refer to the Statutory Index (Appendix A) to identify the
guidelines for the statutes of conviction. U.S.S.G. 1B1.2(a) (2000). The
index, in turn, directed the court to the money laundering guidelines, U.S.S.G.
2S1.1 (2000), for Caplinger's convictions for money laundering under 18
U.S.C. 1956, and to the fraud guidelines, U.S.S.G. 2F1.1 (2000), for his
convictions for wire fraud under 18 U.S.C. 1343. The district court therefore
did not err in referring to the money laundering guidelines. We will consider
next in part III.B whether the court properly applied those guidelines.
B.
15

Caplinger argues that the district court erred by grouping the wire fraud and
money laundering counts under U.S.S.G. 3D1.2(d) and applying the higher
offense level for money laundering pursuant to U.S.S.G. 3D1.3(b). Section
3D1.2(d) provides for grouping of all "counts involving substantially the same
harm . . . [w]hen the offense level is determined largely on the total amount of
the harm or loss." Grouping under 3D1.2(d) results in the calculation of an
offense level that is based on the aggregated loss. See U.S.S.G. 3D1.3(b)
(offense level for counts grouped under 3D1.2(d) corresponds to the
aggregated quantity). At the time of Caplinger's sentencing, the law in this
circuit was that offenses for fraud and money laundering could be grouped
together under 3D1.2(d) when they are "`closely related.'" United States v.
Bolden, 325 F.3d 471, 496 (4th Cir.2003) (quoting United States v. Walker, 112
F.3d 163, 167 (4th Cir.1997)). See also United States v. Porter, 909 F.2d 789,
792-93 (4th Cir.1990); cf. United States v. Mullens, 65 F.3d 1560, 1564-65
(11th Cir.1995) (grouping mail fraud and laundering offenses under
3D1.2(d)). In Walker, for example, the amounts specified in the money
laundering counts amounted only to $5051.01, but the district court
nevertheless looked to the amount of money involved in the mail fraud counts
($850,913.59) and used that amount to determine the offense level. Walker, 112
F.3d at 166-67. We held that this aggregation was permissible because "the
facts of the case establish that the mail fraud and money laundering crimes
were interrelated," specifically, the "money laundering was part of [the]
fraudulent scheme." Id., 112 F.3d at 167. See also Bolden, 325 F.3d at 496
(holding that grouping was appropriate when the "money laundering and fraud
activities were part of a continuous, common scheme to defraud"); Mullens, 65
F.3d at 1565 ("[T]he amount of money collected through fraud was coextensive with the sums involved in the charged and uncharged money
laundering counts and was, therefore, the total amount of funds involved in the
ponzi."). On the facts of Caplinger's case, the district court did not err in
determining that the money laundering and wire fraud activities were part of a

continuous, common scheme to defraud. The court was therefore correct in

grouping the wire fraud and money laundering counts and in using the money
laundering guidelines to set Caplinger's offense level.
16

We note that Amendment 634 to the Guidelines, which went into effect just two
days after Caplinger's sentencing, explicitly provides for grouping of money
laundering counts and counts for the underlying offense under 3D1.2(c),
rather than 3D1.2(d) as our court had previously allowed. U.S.S.G. Supp. to
App. C, Amend. 634 (effective Nov. 1, 2001). (The Amendment completely
changes the way in which the offense level for money laundering is calculated.
See U.S.S.G. 2S1.1(a) (2001). Rather than setting base offense levels of 23 or
20 for money laundering like the earlier guideline, the amended guideline sets
the base offense level at either the offense level for the underlying offense from
which the laundered funds were derived or eight plus the number of offense
levels from the table in 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to the value of the laundered funds. See id.) Amendment 634
does not apply retroactively, however, and thus Caplinger does not benefit from
it. See United States v. King, 280 F.3d 886, 891 (8th Cir.2002); United States v.
McIntosh, 280 F.3d 479, 485 (5th Cir.2002); United States v. Sabbeth, 277 F.3d
94, 99 (2d Cir.2002).

17

Caplinger further argues that the district court erred in setting the loss under the
money laundering guidelines at $1,800,000, the total of the funds wired to
Caplinger by Weekly and Kampetis. Caplinger says that the money laundering
loss should have been limited to $875,000, the loss stemming from the two
money laundering counts. At the time of Caplinger's sentencing, the money
laundering guidelines for a conviction under 18 U.S.C. 1956 established a
base offense level of 23. U.S.S.G. 2S1.1 (2000). If the money laundered was
between $600,000 and $1,000,000, an additional four points were added,
bringing the offense level to 27. If the money laundered was in excess of
$1,000,000, five points were added, bringing the offense level to 28. Id. Thus, if
the loss amount had been limited to the funds specified in the money
laundering counts under 18 U.S.C. 1956, Caplinger would have faced an
offense level of 27. On the other hand, if (as the district court determined) the
loss amount was all of the money ($1,800,000) wired to Caplinger, he faced an
offense level of 28. According to Caplinger, the district court erred in setting
the loss figure at $1,800,000 (yielding level 28) because the government failed
to prove that he used all of the wired funds to promote his fraud scheme. At
trial the government presented evidence that Caplinger constantly requested
money from Weekly and Kampetis requests that far exceeded the $875,000
specified in the money laundering counts to pay for clinic expenses,
including rent, staff salaries, and medical supplies, and for other expenses such

as maintenance of a corporate airplane. At sentencing FBI Agent Mueller

testified that Caplinger told her that the wired money went to pay expenses,
including salaries, research, rent, and marketing, and to buy large quantities of
ImmuStim. In light of this evidence, the district court did not clearly err in
finding that "[t]he continuing enterprise was supported by the money when Mr.
Caplinger got the money" and that all of the funds ($1,800,000) Caplinger got
from Weekly and Kampetis were used to promote Caplinger's ongoing
fraudulent activities. The loss figure under the money laundering guidelines
was therefore properly fixed at $1,800,000.
C.
18

Finally, Caplinger argues that the district court erred in assessing a two-level
enhancement under U.S.S.G. 3B1.3 for abuse of a position of trust. A
defendant gets the two-level increase under 3B1.3 if the district court
"determines that [he] abused a position of trust and that abuse significantly
contributed to the commission or concealment of the crime." United States v.
Akinkoye, 185 F.3d 192, 203 (4th Cir.1999). See also U.S.S.G. 3B1.3 (2000).
We review for clear error the district court's factual findings that support the
enhancement for abuse of a position of trust. Dawkins, 202 F.3d at 714; United
States v. Helton, 953 F.2d 867, 869 (4th Cir.1992) (concluding that
determinations under both parts of 3B1.3, abuse of position of trust and use of
a special skill, should be reviewed under the same standard). Of course, to the
extent the district court undertakes a legal interpretation of any guideline,
including 3B1.3, our review is de novo. United States v. Gormley, 201 F.3d
290, 296 (4th Cir.2000) (concluding that the district court "erred in its
interpretation of the guidelines by concluding that tax preparation as practiced
by [the defendant] is a special skill" under U.S.S.G. 3B1.3).

19

The basic question is whether Caplinger, by posing as an accomplished

physician in order to influence potential investors, abused a position of trust
with respect to the victims of his fraud scheme within the meaning of
Guidelines 3B1.3. The government argued at sentencing that Caplinger's use
of his position as a "physician" significantly facilitated the commission of the
fraud. The government presented evidence that investors were given (false)
information about Caplinger's medical background and that this background
was touted as a reason for the likely success of the ImmuStim venture. Based
on this evidence, the district court determined "that it was largely by virtue of
the false identification of Mr. Caplinger having these important sounding
degrees and important experience, all of which was conveyed to the investors,
that the scheme was able to work and that created the position of trust." The
district court did not clearly err in its factual finding that Caplinger's asserted

position as a physician facilitated the fraud. There is still the question, however,
of whether the district court erred in concluding that Caplinger's use of his
asserted position as a physician amounted to an "abuse of position of trust" as
that phrase is used in Guidelines 3B1.3. This ultimate determination involved
a legal interpretation of 3B1.3, and we review that interpretation de novo. See
Gormley, 201 F.3d at 295-96 (reviewing de novo the district court's
interpretation of "special skill" as used in 3B1.3).
20

We recognize, as do other courts, that "[d]etermining what constitutes a

position of trust for the purposes of 3B1.3 is not a simple task." United States
v. Morris, 286 F.3d 1291, 1296 (11th Cir.2002) (quoting United States v.
Iannone, 184 F.3d 214, 222 (3rd Cir.1999)). The commentary to 3B1.3
provides some guidance for deciding whether a defendant occupied a position
of trust. "`Public or private trust' refers to a position of public or private trust
characterized by professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable deference)."
U.S.S.G. 3B1.3 comment. (n.1) (2000). See also Bolden, 325 F.3d at 504.
The commentary also provides specific examples of when the abuse of a
position of trust justifies the enhancement: "an embezzlement of a client's funds
by an attorney as a guardian, a bank executive's fraudulent loan scheme, or the
criminal sexual abuse of a patient by a physician under the guise of an
examination." U.S.S.G. 3B1.3, comment. (n.1) (2000). Finally, the
commentary explains that the "adjustment . . . applies in a case in which the
defendant provides sufficient indicia to the victim that the defendant
legitimately holds a position of private or public trust when, in fact, the
defendant does not." U.S.S.G. 3B1.3, comment. (n.2) (2000).

21

We have emphasized that the "position of trust" inquiry must focus on the
relationship between the defendant and the victim from the perspective of the
victim. United States v. Gordon, 61 F.3d 263, 269 (4th Cir.1995). "There must
be a trust relationship between [the defendant] and his victim for the
enhancement to apply." United States v. Moore, 29 F.3d 175, 180 (4th
Cir.1994) (internal quotation marks and citation omitted) (alteration in
original). "In the case of an imposter, it is not merely the defendant's
misrepresentation that justifies the 3B1.3 enhancement. In every case of
fraud, the defendant will have [gained the] confidence and trust [of] the victim.
But fraud alone does not justify the enhancement." United States v. Bollin, 264
F.3d 391, 415 (4th Cir.2001). See also Mullens, 65 F.3d at 1567. A sentencing
court must "carefully distinguish between those arms-length commercial
relationships where trust is created by the defendant's personality or the victim's
credulity," Bollin, 264 F.3d at 415 (internal quotation marks and citation
omitted), and those "where a `fiduciary or personal trust relationship exists' with

[the victim], and the defendant takes advantage of the relationship to perpetrate
or conceal the offense," United States v. Koehn, 74 F.3d 199, 201 (10th
Cir.1996) (citation omitted). Only the latter circumstances justify the
enhancement. At bottom, 3B1.3's critical term "position of public or
private trust" is "a term of art, appropriating some of the aspects of the legal
concept of a trustee or fiduciary." United States v. Garrison, 133 F.3d 831, 839
n. 18 (11th Cir.1998) (internal quotation marks and citation omitted). In other
words, application of the enhancement "requires more than a mere showing that
the victim had confidence in the defendant. Something more akin to a fiduciary
function is required." United States v. Brunson, 54 F.3d 673, 678 (10th
Cir.1995). Cf. Bollin, 264 F.3d at 416 ( 3B1.3 applies when the defendant has
broad discretion to act on behalf of the victim, and the victim believes the
defendant will act in the victim's best interest); Moore, 29 F.3d at 180
(defendant must be in a trust relationship with the victim that permits the
defendant to "commit a difficult-to-detect wrong").
22

The district court identified "the investors" as the victims of Caplinger's fraud
scheme. Although the district court did not specifically identify the investors, it
appears that the court was referring to those individuals who bought shares of
IPI, the corporation through which Caplinger's venture was run. Caplinger's
relationship with the investors determines whether he occupied a position of
trust. To begin with, the fact that Caplinger posed as a physician does not by
itself mean that he occupied a position of trust. See Gordon, 61 F.3d at 269
("The abuse of trust enhancement was not designed to turn on formalistic
definitions of job type."). Caplinger did not assume a physician-patient
relationship with any of the victims. Rather, the victims were simply investors
who put their money in IPI (Caplinger's ImmuStim marketing venture) based on
the solicitations and representations of Weekly and Kampetis. Weekly and
Kampetis, of course, passed on to the investors information about Caplinger's
portrayal of himself as a prominent physician. The false information about
Caplinger's credentials and experience did assist in convincing investors and in
making them more confident about their investment. But Caplinger had
essentially an entrepreneurial relationship with his investors: he held himself
out as an accomplished physician who would organize, manage, and promote
the ImmuStim marketing project. Any trust the investors placed in Caplinger
was not based on a special relationship he had with them as a physician, but on
the investors' misplaced belief in Weekly's and Kampetis's representations
about Caplinger's credentials and the ImmuStim project's potential for success.
Compare United States v. Jolly, 102 F.3d 46, 48-50 (2d Cir.1996) (no abuse of
trust when the defendant solicited loans from investors for bogus business
venture but did not hold himself out as an investment advisor or broker to the
investors); Mullens, 65 F.3d at 1566-67 (no abuse of trust when the defendant

operated a ponzi scheme but did not hold himself out as an investment broker
and did not have a "special, close, or personal attachment, or fiduciary
relationship, with any" of the investors), with Bollin, 264 F.3d at 415-16 (abuse
of trust when defendants held themselves out as debentures traders and brokers
to their clients); United States v. Hirsch, 239 F.3d 221, 227 (2d Cir.2001)
(same). In sum, although Caplinger's assumed status as an accomplished
physician was used by Weekly and Kampetis to persuade the investors (the
victims) to put money into Caplinger's venture, the facts do not support the
conclusion that Caplinger, by posing as a physician, occupied a "position of
trust" with the victims as that term is used in 3B1.3 of the Guidelines. See
Morris, 286 F.3d at 1297. We therefore vacate Caplinger's sentence and remand
for resentencing without the enhancement for abuse of trust.
IV.
23

To recap, we affirm Caplinger's money laundering convictions. As to the

determination of his sentence, we affirm the district court's reference to the
money laundering guidelines, its grouping of the money laundering and fraud
counts under U.S.S.G. 3D1.2(d), and its computation of the amount of loss.
The district court erred, however, in assessing Caplinger with a two-level
enhancement under U.S.S.G. 3B1.3 for abuse of a position of trust. We
therefore vacate the sentence and remand the case for Caplinger to be
resentenced without this enhancement.

24

AFFIRMED IN PART, VACATED IN PART, AND REMANDED